NGUYEN NGOC NAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 335/2020

[2025] HKCFI 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 335 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53 rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and “the decision of the Torture Claims Appeal Board dated 9 September 2019” be added as the decision in respect of which relief is sought.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 30 January 2020 and filed on 6 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board ("the Board") without identifying the date of the decision.

2.  As the Board made only one decision dated 9 September 2019 (“the Board's Decision”) concerning the applicant’s claim for non-refoulement protection, the Leave Application must be made in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000335_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board dismissed the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 5 May 2017.

Amendments

4.  The applicant wrongly named himself as the putative respondent and the putative interested party in Form 86. In the title of the supporting affirmation dated 11 November 2019, he also wrongly named Immigration Department as the defendant. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

5.  Also, “the decision of the Torture Claims Appeal Board dated 9 September 2019” is added as the decision in respect of which relief is sought.

Late application

1.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

2.  However, the applicant filed Form 86 only on 6 March 2020, which is more than 5 months from the date of the Board’s Decision. The applicant was therefore late for more than 2 months in making the Leave Application.

3.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

4.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. Although the delay was not too long, there is still no justification for the delay when no explanation was given. There is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

5.  However, for the sake of completeness, this court will still examine the merits of the intended application.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because of his fear of being harm or killed by the police or the staff of a financial institute if he were to return to Vietnam.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  The applicant failed to identify any grounds for the intended judicial review. He merely stated in the supporting affirmation that his life would be in danger if returned to Vietnam, and the people who have problem with him said they would not leave the matter until they kill him.

Discussion

10.  The Board did deal with the alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

11.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

13.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

14.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1